Rehnquist's Court: Tuning Out the White House

By Stuart Taylor Jr.; Stuart Taylor Jr. covered the Supreme Court for The New York Times for three years, through the summer of 1988.

Published: September 11, 1988

CHIEF JUSTICE WILLIAM HUBBS REHNQUIST stared stonily out at the crowd in the marble-columned chamber from the Supreme Court's center chair, the chair in which Ronald Reagan had put him two years before. It was June 29, the last day of the Court's 1987-88 term, and one decision remained to be handed down - the big one.

''Number 87-1279,'' the Chief Justice began. Methodically, he summarized the background of this momentous challenge to the Federal independent prosecutor law, brought by the Administration and by former top Reagan aides caught in the law's toils. The Watergate-inspired law - which provides for a special court to appoint prosecutors independent of the executive branch to investigate alleged crimes by top Federal officials - stood as an affront to the sweeping, unfettered vision of Presidential power that has become part of today's conservative political creed. Administration conservatives hated it with a burning passion. Now Rehnquist, their choice for Chief Justice, was announcing the Court's opinion, making it clear that he had written it himself.

Finally, he reached the question on which his audience hung. ''We now reverse the Court of Appeals in an opinion joined by seven members of the Court,'' he said, ''and uphold the validity of the independent counsel provisions of the Ethics in Government Act.''

With those words, Rehnquist dashed the hopes of his Reagan Administration benefactors, shattered his most ardent admirers' bold theories of Presidential supremacy, and confounded the conventional wisdom that he would always vote the straight conservative line. He also moved Michael K. Deaver and Lyn Nofziger, close Reagan associates who are fighting to overturn criminal convictions won by independent prosecutors, a step closer to the prison gates. Rehnquist's bland intonation gave no hint that this was a historic decision, one of a handful over 200 years marking out the boundaries between the executive, legislative and judicial powers.

''That is not only the most important decision of this term but one of the most important cases in all of constitutional jurisprudence,'' one insider at the Court said later. ''It says that none of the three branches can ever again claim to be the absolute arbiter of anything.''

Whether or not Rehnquist intended it to, the decision also seemed to say something else: that this is the Rehnquist Court - not the Reagan Court. Indeed, on that dramatic day the Court rejected the Administration's position in five cases, while ruling in its favor in only one. Each time another loss was announced, Solicitor General Charles Fried, the Government's lawyer, seemed to slump a bit deeper in his chair.

FOR SEVEN YEARS, PRESIDENT REAGAN, Attorney General Edwin L. Meese 3d and the fervent conservatives who surrounded Meese during his tenure had mounted the most systematic campaign in decades, perhaps in history, to reverse the ideological direction of the Federal judiciary. Marching under the banner of apolitical ''judicial restraint'' and reverence for the ''original intent'' of the framers of the Constitution, they sought to rein in the excesses of liberal judicial activism and bring Constitutional law in line with their own, sometimes activist, conservative political agenda.

But despite Reagan's elevation of Rehnquist from Associate Justice, and his appointments of Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy, his Administration has lost more of the political blockbuster cases than it has won. It also lost the Armageddon of Senate confirmation battles last October when the nomination of the conservative legal titan Robert H. Bork was defeated by a decisive vote of 58-42.

It remains possible, however, that while losing these battles the Administration was winning the war. Some argue that the seeds of a future conservative victory were planted when the moderate-seeming Kennedy rolled through the Democratic-controlled Senate as smoothly as the Greeks' wooden horse passed through the gates of Troy.

Evidence for this theory began to accumulate in April when Kennedy, two months into his new job, tipped the balance in a dramatic 5-to-4 vote, joining the other Reagan appointees and Justice Byron R. White (a John F. Kennedy appointee who usually votes with them) in ordering the parties in a pending case to make new arguments on an issue neither party had raised: whether the Court should overrule its 1976 decision in Runyon v. McCrary, which had transformed a little-used 1866 civil rights law into a powerful remedy against racial discrimination in private transactions.

In bitter dissents, the four liberal Justices accused the majority of acting as judicial activists by gratuitously reaching out to unsettle well-established law. Liberals and civil rights lawyers shuddered. Had they defeated the dreaded Bork only to be done in by Reagan's third choice, who won unanimous confirmation in the Senate largely because he had not tipped his hand on the big issues? Was a Reaganized Court laying the groundwork for the conservative counterrevolution that never materialized during Warren E. Burger's 17 years as Chief Justice?

These questions, like the fate of Runyon v. McCrary, are likely to be answered in the Court's new term. Beginning Oct. 3, the Justices will face a bucketful of politically charged issues - including affirmative action, drug testing, capital punishment of minors and, possibly, abortion - which could make this term a self-defining one for a Court that now seems poised either to move decisively to the political right or to continue down the road of pragmatic centrism, zig-zagging from left to right as coalitions change from issue to issue. ALTHOUGH THE POSSIBILITY OF DRAMATIC CHANGE is in the wind, the Court's legacy from the Reagan years is one of continuity. Indeed, in the two areas in which the Administration battled most passionately to move the law to the right - abortion and affirmative action - the Court pushed in the opposite direction, albeit by narrow majorities. It left the law more hostile to governmental restrictions on abortion, and more friendly to affirmative action, than when Ronald Reagan took office.

Although Chief Justice Rehnquist dissented in the abortion and affirmative action cases, some(Continued on Page 94) this one!!!!! of his opinions for the Court stood in dramatic contrast to the reputation he had earned as the Court's most conservative member. To close students of his writings, Rehnquist's opinion upholding the independent prosecutor law was no great surprise, but it jolted many because it so soundly rebuffed the President who had appointed him. And some of his other opinions - endorsing the constitutionality of rent controls, subjecting to judicial review the Central Intelligence Agency's dismissal of a homosexual employee, making it easier for defendants in criminal cases to plead entrapment - sounded almost liberal, surprising some colleagues and astonishing some of Rehnquist's conservative admirers.

Perhaps most striking was Rehnquist's opinion for a unanimous Court overturning a $200,000 jury award to the Rev. Jerry Falwell against Hustler Magazine, for ''intentional infliction of emotional distress'' by publishing a savage parody describing a fictional incestuous encounter between the television evangelist and his mother in an outhouse. Rehnquist's opinion forcefully reaffirmed a line of decisions, beginning with Justice William J. Brennan Jr.'s landmark 1964 opinion in New York Times v. Sullivan, that bar libel awards to public figures unless they can prove that the defendant knowingly, or recklessly, made a false statement of fact.

In some 20 previous libel and privacy cases, Justice Rehnquist had rejected First Amendment defenses every time. As recently as the day before his June 17, 1986, nomination to succeed Burger as Chief Justice, he had joined a Burger dissent suggesting that New York Times v. Sullivan ''should be re-examined.'' But in his Hustler v. Falwell opinion Rehnquist quoted liberally from New York Times v. Sullivan in ruling for the first time that public figure plaintiffs in ''emotional distress suits,'' must, like those in libel suits, prove knowing or reckless falsity to win damages. What's more, Rehnquist said this extension of the Sullivan libel standard ''reflects our considered judgment that such a standard is necessary to give adequate 'breathing space' to the freedoms protected by the First Amendment.''

What is going on here? ''It certainly doesn't seem like the Rehnquist of old,'' said one conservative former Supreme Court law clerk. ''Maybe being Chief Justice brings one closer to the center. It may be that the best thing that's happened to the liberal cause was the elevation of Rehnquist from Associate Justice to Chief Justice.''

Some conservatives worry that Rehnquist has lost his ideological fire in the belly and become more concerned with ''getting things out and doing it fast so that he can keep his tennis schedule and recess for the summer by July 4,'' as the former law clerk put it.

Some experts speculate that Rehnquist, like Burger, has voted against his true convictions in some cases to preserve what may be his most important power - that of assigning the opinion whenever he votes with the majority. By writing it himself or choosing a like-minded associate, the Chief Justice can assert considerable control over the specific wording, which in turn guides the lower courts in interpreting the decision.

But close acquaintances like Lewis F. Powell, Jr., who retired from the Court in June 1987, emphatically reject this theory. Another lawyer who knows Rehnquist well suggested what might be the most plausible explanation: that he knows he can rank among the great Chief Justices only if he succeeds ''in massing the Court,'' that is, in finding enough common ground to lead the Court to a clear majority opinion in as many cases as possible, and to reach or approach unanimity in the most important cases. The Chief Justice often must set an example himself by giving ground on some points or reasoning in the ruling; by so doing, he can hope to lead his often fractious colleagues toward consensus on deeply divisive issues that fuse law with politics.

In a few cases, such as the Brown v. Board of Education decision in 1954 striking down school segregation, unanimity is important to discourage obstruction by those who would undermine the authority of the Court's orders by raising the prospect that it might eventually back down from them (after new appointments have been made, for example).

In a more general sense, the Court enhances its prestige as the oracle of constitutional principle, and seems less like a squabbling set of nine life-tenured politicians, when it speaks with a strong authoritative voice. The Court, after all, depends on lower courts and the executive branch to enforce its decisions, and those decisions will be heeded as the law of the land only for so long as society respects the institution that issues them.

''Maybe he senses that he as Chief Justice has an obligation to accomodate his views to those of the majority when he can,'' the lawyer said. ''But we'll have to see whether it continues.'' And, he might have added, whether there comes to be or is already a new conservative majority that the Chief Justice can accomodate without having to bend his own long-held conservative views.

IN THE NEAR TERM, much depends on Justice Kennedy. Some who watched him closely this year predict he will be markedly more conservative than his predecessor, Powell (the pragmatic centrist whose vote determined the outcome of important cases with remarkable frequency) and will thus tip the Court's balance firmly to the right. As a former law clerk observed, ''The liberals might have been better off with Bork than with Kennedy, who may wind up being more conservative than Bork in some areas and better at building bridges to others because he's easier to get along with.'' If this proves true, the irony would be exquisite.

Since coming to the Court, Kennedy has joined Rehnquist, O'Connor, Scalia and White in eight of the nine 5-4 votes in which the Court split into liberal and conservative camps. In one of the most ideologically explosive cases, the Court upheld Federal grants for religious groups, among others, to counsel teen-agers against sex and abortion. Kennedy's concurrence, joined by Scalia, strongly hinted support for many kinds of government aid to parochial schools and other religious institutions.

As recently as 1985, Powell had cemented a 5-4 majority to strike down some important programs of aid for parochial schools that the Administration strongly supported. In this area, at least, Kennedy may already have changed the Court's direction. Conservatives hope, and liberals fear, that he may also provide a fifth vote to narrow or even abandon judicial protection of abortion rights; to make it harder for minorities and women to prove job discrimination; to outlaw many affirmative action plans; to make it easier for states to impose and carry out death sentences; to narrow the procedural rights of criminal defendants, and to curb Federal judicial power to second-guess the management of such institutions as schools, prisons and mental hospitals.

If he did all these things, it would add up to the most dramatic reversal in the course of constitutional law in many years.

But while Kennedy and the Rehnquist Court seem more likely to narrow than to expand key doctrines favored by liberals, such as the constitutional rights to sexual and family privacy, nobody is sure how Kennedy will vote, perhaps not even the man himself. ''You just aren't prepared for this job by anything you've done before you come here,'' one Justice said recently. ''Certainly things gelled for me rather differently than when I first came.'' Nor is it clear that the other Reagan appointees, or White, would join a headlong rush to the ideological right.

O'Connor in particular, whom Reagan seems to have chosen more for her sex than for her ideology, is said by some to see herself as a centrist not unlike Powell, albeit one who leans to the conservative side. She has split with fellow Reagan appointees in some important cases, rejecting, for example, the Administration's all-out attack on affirmative action preferences, and joining Rehnquist's opinion rebuffing the Administration's challenge to the independent prosecutor law. And although she has consistently voted to uphold the power of states to restrict abortion rights somewhat, she studiously refrained from joining White, Rehnquist and Solicitor General Fried in 1986 in saying that Roe v. Wade, the landmark 1973 decision legalizing abortion, should be overruled.

WHATEVER DI-rection the Court takes in the coming term could be fleeting. The three most liberal Justices, Brennan, Thurgood Marshall and Harry A. Blackmun, are vigorous but will be 82, 80 and 80, respectively, when the next President is sworn in. And White's former clerks have been trading rumors that he may retire soon after his 72d birthday next June.

As Blackmun said in a speech this summer, the Court could become ''very conservative well into the 21st century if the election goes one way; if it goes the other way, who knows, maybe it won't be.''

This means that in calculating whether to try to get some pending cases into the Court in the coming term, liberal and conservative legal strategists must gauge the odds on a kind of daily double: If Michael Dukakis wins the election and the rumors about White's possible retirement prove correct, the majority that may now exist for cutting back abortion rights, for example, could disappear before it has a chance to decide anything. That scenario suggests that liberal groups should try to keep abortion cases away from the Supreme Court for now. On the other hand, if George Bush carries the day, the future of abortion rights would look bleak indeed, a scenario that may tempt liberals to press abortion law appeals now, and hope for the best.

While today's Court often does split into identifiable liberal and conservative camps, those camps are not monolithic. The nine Justices are fiercely independent people and, as Rehnquist put it in a 1984 speech, the Court is ''far more dominated by centrifugal forces, pushing toward individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity.''

Alliances shift from one case to the next; indeed, many cases pit against one another values prized by conservatives, such as free market economics and states' rights; or values prized by liberals, such as labor unionism and freedom of conscience. Justices Blackmun and John Paul Stevens usually side with Brennan and Marshall, the most liberal Justices, but frequently split with them to join the conservatives, especially in ruling against criminal defendants. Brennan usually favors organized labor but dealt unions a major blow in a June decision invalidating labor contracts that require non-union workers to help pay for union political and organizing activities.

Each of the ''conservatives'' occasionally defects. Even Scalia, who sometimes seems to have displaced Rehnquist as the most conservative Justice, has taken liberal positions on some criminal law and free speech issues. Although he was the lone dissenter in the independent prosecutor case, he wrote a 6-to-2 decision handed down the same day that reversed an Iowa man's conviction for molesting two 13-year-old girls, ruling that the use of a one-way screen to shield the victims from having to look at the defendant when they testified violated his right to confront his accusers ''face-to-face.''

There are leaders on the Court: Rehnquist at one end of the ideological spectrum and Brennan at the other combine coherent constitutional and political philosophies with exceptional abilities, personal charm and long experience. In an interview, Powell described Rehnquist as ''one of the ablest and best-educated people I've ever worked with,'' marveling at his ability to conjure up literary allusions at the Court's conferences. Brennan, meanwhile, in his 32 years as the Court's most likable and politically adept coalition-builder, has had an especially powerful influence on the evolution of constitutional doctrine. Powell said that ''Bill Brennan will rank among the top Justices of this Court'' in the judgment of history; some consider him the most influential Justice of the 20th century.

But while the Court has leaders, it has no followers. All nine Justices are well above average in intelligence. Stevens, White and Scalia as well as Rehnquist and Brennan have especially powerful intellects, although White's sometimes slapdash opinions do not display his formidable mind to best advantage. As Powell put it, ''Each of us votes independently, and I don't think a Chief Justice who tries to twist arms is going to get anywhere.''

Arm-twisting is not Rehnquist's style, by all accounts. By his own, he was under no illusion that his elevation would allow him to impose his ideology on his colleagues. ''I think the Chief Justice can exercise a certain amount of leadership on the Court,'' he said at his confirmation hearing, ''but I do not think it is apt to be in a philosophical direction.'' Rather, he said, by skillfully using his prerogatives to lead off discussions of cases in the Court's private conferences and to assign opinions, the Chief can ''work toward a smoothly functioning Court.''

Rehnquist has done that effectively, winning the praise of his colleagues, including Brennan and Marshall, who have told friends he is shaping up as a fine Chief Justice. He has won particular praise for fairness in assigning opinions and in parceling out the dull, technical cases on matters like tax law that the Justices call ''dogs.'' Blackmun has welcomed this change from the regime of Burger, a childhood friend whose wedding he attended as best man but whose management of the Court he and his colleagues did not admire. ''If one's in the doghouse with the Chief,'' he said of Burger in 1986, ''he gets the crud.''

Rehnquist also runs the Court's public arguments and private conferences with an easy wit and a brisk but informal approach that colleagues much prefer to Burger's stuffier, longer-winded style. Says one participant in a monthly poker game in which Rehnquist is a regular: ''The Chief Justice really keeps everybody moving fast. If people start telling jokes and talking politics and things like that, he says, 'Come on, let's move things along and play poker and stop the folderol.' And I bet that's the way he runs the conference at the Supreme Court.''

So it is, other Justices say. ''The Chief in conference is a splendid administrator,'' Blackmun said in July. ''We're not there all day long and part of the next day. We get through in a hurry. If there's anything to be criticized about it, he gets through it in too much of a hurry at times. He cuts down interchange between Justices and always says, 'Well, that can come out in the writing.' . . . He's cut down on the jokes that Thurgood Marshall likes to tell.''

Rehnquist's businesslike, almost severe demeanor when presiding at public arguments is leavened by occasional flashes of humor. When Jay Topkis, a prominent New York lawyer, was attacking a Louisiana law designed to require the teaching of ''creation science'' in any public school that taught evolution, he declared of his adversary's argument, ''I doubt very much it will fool this Court.'' Rehnquist deadpanned in response: ''Don't overestimate us.'' He then followed through by joining Scalia's dissent from a 7-to-2 decision striking the law down.

ON OCT. 12, THE courtroom will be jammed with lawyers seeking some early clues about where the Rehnquist Court is headed. The Court will be hearing oral argument in Patterson v. McLean Credit Union, the case in which it voted to consider whether to overrule its 1976 decision in Runyon v. McCrary. Brenda Patterson, the plaintiff, is seeking compensation and punitive damages from her former employer in Winston-Salem, N.C., for what she says was hostile and demeaning treatment by racist supervisors. She charges that the company president, who hired her as a file clerk, warned her that she would be working with white women who wouldn't like her because she was black. He made her do menial chores that white co-workers were not asked to do, she says, gave her an oppressive workload, denied her merit raises and promotion, and told her when she fell behind that ''blacks are known to work slower than whites by nature.'' The company denies any discrimination took place.

Mrs. Patterson invoked the Civil Rights Act of 1866, which guarantess to all persons the same right ''to make and enforce contracts'' as ''is enjoyed by white citizens.'' In its 1976 Runyon decision, the Court ruled that the 1866 law barred private parties from discriminating on grounds of race in determining with whom they would enter into contracts, including employment contracts. This transformed the law into a more potent remedy for racial discrimination, in some ways, than the 1964 Civil Rights Act (which does not cover the smallest employers or provide for punitive damages).

Originally, the Court agreed to review whether a Federal appeals court had erred in dismissing Mrs. Patterson's racial harassment claim on the ground that the 1866 law bars employers from discriminating only in hiring, firing and promotions. But after hearing arguments on that point in February, the majority on April 25 raised the stakes by questioning whether the post-Civil War Congress had intended the law to cover racial discrimination in private transactions at all. In 1976, White had dissented sharply in Runyon, joined by Rehnquist. The April 25 re-argument order suggested that Justices O'Connor, Scalia and Kennedy, all new to the Court since 1976, were inclined to agree with them.

The re-argument order transformed the case into a cause celebre. Civil rights advocates organized an extraordinary display of support for the Runyon decision: 66 United States Senators, 145 House members, 47 of the 50 state attorneys general, prominent historians, more than 100 civil rights, religious and civic groups and others filed briefs arguing that Runyon was right on the intent of the Reconstruction-era Congress, and should be reaffirmed as an important embodiment of the modern consensus against racial discrimination.

In a 1976 opinion concurring in the Runyon decision, Justice Stevens agreed with Justice White's dissent that the Reconstruction-era Congress had not intended to ban private racial discrimination. But he said the majority's ruling was a logical extension of earlier decisions which, although perhaps incorrect on the original intent, had become ''an important part of the fabric of our law,'' consistent with ''the prevailing sense of justice today.''

Whether such logic wins a majority of current Justices in Brenda Patterson's case could say much about the direction of the Rehnquist Court. William H. Rehnquist

Sixty-three years old . . . became an Associate Justice in 1972 and has been the Court's most conservative member for 15 years . . . won Senate confirmation as Reagan's choice for Chief Justice two years ago over bitter opposition from liberals . . . well-liked and respected by colleagues for an easy-going, efficient management style . . . published a book on the Court's history last year . . . plays tennis and swims to help a bad back . . . a law clerk for Justice Robert H. Jackson during 1952 and 1953, he once complained that most fellow clerks had ''liberal'' views including ''extreme solicitude for the claims of Communists and other criminal defendants'' . . . practiced law in Phoenix and served in the Nixon Justice Department before Nixon picked him for the Court. William J. Brennan Jr.

Eighty-two years old . . . the longest-serving Justice, with 32 years on the Court . . . a diminutive Irishman seen by admirers as one of the giants in the Court's history . . . has served under Chief Justices Warren, Burger and Rehnquist and may have been more influential than any of them . . . an ardent champion of civil rights and civil liberties, who votes along with Thurgood Marshall to strike down every death sentence . . . has written landmark decisions on reapportionment, free speech, civil rights . . . was appointed by President Eisenhower, who later complained of Brennan's liberalism . . . long the Court's most adept political strategist and coalition-builder, with a knack for compromising just enough to get five votes while moving the law where he wants it to go . . . a gregarious charmer who seems to like almost everyone . . . says ''if God spares me, I'll be here'' for a long time. Anthony M. Kennedy

Fifty-two years old (shown at right in his Sacramento, Calif., offices in June 1987, after it was disclosed that he was a contender for a position on the Court) . . . Reagan's third choice to replace Justice Lewis F. Powell Jr., after Robert H. Bork was rejected by the Senate and Douglas H. Ginsburg's nomination was withrawn under fire . . . unanimously confirmed by the Senate because of moderate-seeming judicial opinions, thoughtful speeches and cautious testimony that did not reveal his views on many controversial issues . . . still a question mark, but his first few votes and opinions suggest he may be more conservative than Powell was . . . practiced law in his native Sacramento,taught constitutional law part-time at McGeorge School of Law in Sacramento, and served as a Federal appellate judge. Thurgood Marshall

Eighty years old . . . was the leading civil rights lawyer in the early battles to desegregate schools, arguing for the black children in Brown v. Board of Education . . . served as Federal appellate judge and Solicitor General before Lyndon Johnson made him the first black member of the Court in 1967 . . . the Court's most liberal member, along with Brennan . . . cares passionately about equal opportunity for blacks and other minorities and fears ''we aren't gaining ground'' . . . outspoken speech-maker who has denounced the original Constitution as a racist document and has ranked Reagan at ''the bottom'' among Presidents . . . likes to tell anecdotes and jokes, including the one about a boy who wanted eight of his autographs to trade for one of Willie Mays . . . says he was appointed for life and he will serve out his term. Harry A. Blackmun

Seventy-nine years old . . . was conservative when Nixon appointed him in 1970 but slid across the ideological spectrum and now sides most often with Brennan and Marshall . . . often worries aloud that the Court is drifting too far to the right . . . has had hundreds of hate letters and threats since writing the 1973 decision legalizing abortion . . . tries to focus on the effects of decisions on ordinary people rather than on grand theoretical principles . . . says legal rules need to be tempered with ''a little bit of compassion'' . . . one of the hardest-working Justices, self-effacing but proud and sometimes prickly . . . tells homespun anecdotes in speeches about colleagues, their quirks and the Court's inner workings . . . says Justices ''are ordinary people, too'' . . . his favorite opinion was one on baseball and antitrust that let him take ''a sentimental journey'' and quote from ''Casey at the Bat.'' John Paul Stevens

Sixty-eight years old . . . one of the most intelligent and imaginative Justices . . . his unwillingness to compromise is said to limit his effectiveness . . . sometimes has insights that impress scholars but are ignored by other Justices . . . ''a maverick,'' says Blackmun . . . sides with the liberals in important areas like abortion and affirmative action but with conservatives in some key cases . . . broke tradition last summer by publicly endorsing Robert Bork's nomination to the Court . . . had the best academic record in the history of Northwestern University Law School . . . served as a law clerk to Justice Wiley Rutledge . . . then practiced in Chicago, taught antitrust law and served as a Federal appellate judge before President Ford put him on the Supreme Court in 1975. Byron R. White

Seventy-one years old . . . an All-American football player nicknamed Whizzer, a Rhodes Scholar, a top Yale Law School graduate and a law clerk to Chief Justice Fred Vinson in 1946-47 . . . served in the Kennedy Justice Department before appointment to the Court in 1962 . . . a formidable intellect but said by Justice Blackmun to write ''sometimes in a manner that is hard to understand'' . . . was no liberal to start with, has moved rightward over the years and now sides with Reagan-appointed conservatives most of the time . . . dissented, along with Rehnquist, in a 1973 decision legalizing abortion and urged in a 1986 dissent that it be overruled . . . lays traps for lawyers at oral arguments by demanding ''yes or no'' answers to loaded questions. Sandra Day O'Connor

Fifty-eight years old (shown here in a 1987 portrait) . . . was a legislator and state court judge in Arizona before becoming the first woman on the Court, in 1981 . . . was a high-ranking law school classmate of Rehnquist's at Stanford but had trouble getting job in private law firm because of sex discrimination . . . conservative on most issues but liberal on sex discrimination and stays fairly close to the center on politically charged issues like affirmative action and the death penalty . . . active on the Washington party circuit . . . Blackmun says she agonized over whether 15-year-old murderer could be put to death because ''the soft spots in her armor . . . are children and women.'' Antonin Scalia

Fifty-two years old (shown here during confirmation hearings in August 1986) . . . perhaps the most conservative justice on affirmative action, executive powers and property rights, but sometimes takes liberal positions on defendants' rights and free speech . . . a former University of Chicago law professor who loves intellectual debate and complains there is too little of it at the Court . . . plays poker with Rehnquist, tennis with O'Connor, and jogs with Kennedy . . . likes to play piano and sing . . . ''asks far too many questions'' at oral arguments, says Blackmun . . . made Harvard Law Review, practiced in Cleveland, served in the Nixon and Ford Administrations and taught law before Reagan put him on a Federal appellate court and then the Supreme Court.